M.W. v. Wamsher

Decision Date27 September 2012
Docket NumberNo. 12CA0771.,12CA0771.
Citation292 P.3d 1158
PartiesIn re the Parental Responsibilities of M.W., a Child, and Concerning Shane Jonas Taylor, Petitioner–Appellant, and Trista Ann Wamsher, Respondent–Appellee, and Edward Day, Intervenor–Appellee.
CourtColorado Court of Appeals

OPINION TEXT STARTS HERE

Springer and Steinberg, P.C., Michael P. Zwiebel, Denver, Colorado, for PetitionerAppellant.

Pearson & Paris, P.C., Nathan T. Mattison, Lakewood, Colorado, for RespondentAppellee.

McGuane and Hogan, LLP, Kathleen A. Hogan, Denver, Colorado, for IntervenorAppellee.

The Radman Law Firm, LLC, Diane R. Radman, Denver, Colorado, for Amici Curiae National Center for Lesbian Rights and Lambda Legal Defense and Education Fund, Inc.

Opinion by Judge HAWTHORNE.

¶ 1 In this action concerning parental responsibilities for M.W., who is the child of Trista Ann Wamsher (mother) and Edward Day (father), mother's former boyfriend, Shane Jonas Taylor, appeals from the trial court's judgment. The trial court determined that, although Taylor has standing under section 14–10–123(1)(c), C.R.S.2012, it could not allocate parental responsibilities to him consistent with Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). We reverse and remand for further proceedings.

I. Factual and Procedural History
A. Mother and Taylor's Relationship

¶ 2 Mother and Taylor entered into a relationship while mother was pregnant with father's child. Taylor was present when M.W. was born and lived with mother and M.W. for the first two years of M.W.'s life. During this time, Taylor participated with mother in M.W.'s daily care, and also cared for the child by himself on several occasions when mother was away overnight. Mother considered Taylor as effectively M.W.'s father. Mother also encouraged M.W. to identify Taylor as his father, and M.W. did so.

¶ 3 When M.W. was two years old, mother and Taylor ended their relationship, and mother and M.W. moved out of Taylor's home. Several months later, Taylor petitioned for an allocation of parental responsibilities for M.W.

B. Father's Involvement

¶ 4 After mother moved out of Taylor's home, she sought public assistance, which resulted in father, who was living in North Carolina at the time, being notified that a child support action had been initiated against him. Father initially doubted that he was M.W.'s father and had had no contact with mother or M.W. Several years later, in the course of a child support proceeding, he arranged for genetic testing, and his paternity was confirmed. Thereafter, father intervened in the parental responsibility proceeding initiated by Taylor, and moved to Colorado with his girlfriend. With mother's consent, father and his girlfriend then began exercising parenting time with M.W.

C. Trial Court Proceedings

¶ 5 The trial court held a three-day hearing at which numerous witnesses, including a parental responsibilities evaluator (PRE), testified concerning the parties, their relationships and interactions with M.W., and M.W.'s best interests.

¶ 6 The PRE recommended that Taylor, as M.W.'s psychological parent, be the child's primary caregiver. A clinical psychologist, who evaluated the parties, testified that Taylor was very motivated to continue being a loving parent to M.W., that father had just recently met M.W. for the first time, and that mother did not understand M.W.'s need for predictability and routine in terms of who was taking care of him.

¶ 7 Mother testified that although she recognized Taylor as a father to M.W., it was in M.W.'s best interests for her to be the child's primary parent. Mother further testified that M.W. was enjoying his parenting time with father and referred to both Taylor and father as “daddy.”

¶ 8 Father testified that he appreciated Taylor's role in helping mother care for M.W., but that the child now had both biological parents in his life, and that father and mother were co-parenting successfully and should be able to continue doing so.

¶ 9 The trial court found that although Taylor was M.W.'s psychological parent and had established standing under section 14–10–123(1)(c), the court could not allocate parenting time to Taylor unless it found that mother and father were unfit or that they would likely make parenting decisions that were not in M.W.'s best interests. Because, based on the evidence presented, the court did not find either of these two elements, it further found that it could not legally allocate parenting time to Taylor over M.W.'s parents' objections. After Taylor's C.R.C.P. 59 motion was denied by the trial court, he appealed.

II. Legal Standard

¶ 10 Taylor contends that the trial court applied an incorrect legal standard by ruling that it could not allocate parenting time to him unless it found that mother and father were unfit or that they would likely make parenting decisions that were not in M.W.'s best interests. We agree.

¶ 11 We review de novo the legal standard applied by the trial court in a parental responsibility dispute between a parent and a nonparent. See In re Parental Responsibilities of B.R.D., 2012 COA 63, ¶ 15, 280 P.3d 78.

A. Parental Responsibilities Proceedings Involving Nonparents

¶ 12 Once a nonparent has established standing under section 14–10–123(1), C.R.S.2012, to pursue an allocation of parental responsibilities for a child, the trial court then considers whether to allocate parenting time or decision-making authority to the nonparent based on the factors in section 14–10–124(1.5), C.R.S.2012. In re Parental Responsibilities of B.J., 242 P.3d 1128, 1132 (Colo.2010).

¶ 13 A parental responsibilities dispute between a parent and a nonparent is not a contest between equals, however. See B.R.D., ¶ 28; In Interest of C.T.G., 179 P.3d 213, 218 (Colo.App.2007); In Interest of E.L.M.C., 100 P.3d 546, 561 (Colo.App.2004). Rather, parents have a fundamental right protected by the Due Process Clause to make decisions concerning the care, custody, and control of their children. Troxel, 530 U.S. at 66, 120 S.Ct. 2054;B.J., 242 P.3d at 1133. Thus, before a court can allocate parental responsibilities to a nonparent over a child's parent's objections, special factors must justify the court's interference with the parent's fundamental right. See B.J., 242 P.3d at 1134.

¶ 14 Further, when a nonparent seeks parental responsibilities for a child contrary to a parent's wishes, the court is required to give special weight to a parent's determination whether to grant the requested responsibilities. See id. Giving special weight means that the presumption favoring the parent's decision can be rebutted only by clear and convincing evidence that granting parental responsibilities to the nonparent is in the child's best interests. See id.;In re Parental Responsibilities of E.S., 264 P.3d 623, 626–27 (Colo.App.2011). A nonparent need not also prove that the child's parents are unfit, however. See In re Parental Responsibilities of Reese, 227 P.3d 900, 905 (Colo.App.2010); cf. In re Adoption of C.A., 137 P.3d 318, 326 (Colo.2006) (rejecting standard that would require grandparents to demonstrate parental unfitness in order to be awarded visitation over the parents' objections).

¶ 15 In allocation of parental responsibilities proceedings, the court must employ a three-part test before issuing an order granting a nonparent's request for parental responsibilities. See B.J., 242 P.3d at 1134;Reese, 227 P.3d at 903. First, a presumption exists favoring the parental determination. B.J., 242 P.3d at 1134. Second, to rebut this presumption, the nonparent must show by clear and convincing evidence that the parental determination is not in the child's best interests. Id. Finally, the ultimate burden rests on the nonparent to establish by clear and convincing evidence that the nonparent's requested allocation is in the child's best interests. Id. After applying this test, a court allocating parental responsibilities to a nonparent must make factual findings and legal conclusions identifying those “special factors” on which it relies. Id.

B. Best Interests

¶ 16 When determining whether to allocate parental responsibilities to a nonparent under these standards, a court must consider the section 14–10–124(1.5) factors, giving paramount consideration to the physical, mental, and emotional conditions and needs of the child. B.J., 242 P.3d at 1134;see also§ 14–10–123.4, C.R.S.2012 ([C]hildren have certain rights in the determination of matters relating to parental responsibilities, including the right to have such determinations based upon the best interests of the child.”); In re Custody of C.C.R.S., 892 P.2d 246, 248 (Colo.1995) ([T]he best interests of the child standard is the paramount consideration in a custodial dispute between a natural parent and the psychological parents.”).

C. The Trial Court's Ruling

¶ 17 Here, the trial court did not apply these standards. It concluded that, although Taylor had standing under section 14–10–123(1)(c), the constitutional determination established in Troxel “trumps the Colorado statute,” 1 and therefore the court could not allocate parenting time to Taylor over mother's and father's objections unless it found that the parents were unfit or were likely to make decisions that were not in M.W.'s best interests.

¶ 18 In so ruling, the trial court relied on the following statement from Troxel:

[S]o long as a parent adequately cares for his or her children ( i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children.

530 U.S. at 68–69, 120 S.Ct. 2054;see also B.J., 242 P.3d at 1135 (“Whether to allow any daytime or overnight visits, and if so, under what circumstances, is typically a parent's decision to make.”).

¶ 19 Here, however, the trial court found, with record support, the existence of unique circumstances involving the...

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  • Psychological Parents and Child Support
    • United States
    • Colorado Bar Association Colorado Lawyer No. 51-10, November 2022
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    ...[32] In re E.L.M.C, 100 P.3d at 550. [33] In re C.T.G, 179 P.3d at 220. [34] Id. [35] In re E.L.M.C, 100 P.3d at 553. [36] In re M.W., 292 P.3d 1158 (Colo.App. 2012). 37 In re Reese, 227 P.3d 900, 902 (Colo.App. 2010). [38] Id. at 903. [39] In re A.C.H., 440 P.3d 1266, 1269 (Colo.App. 2019)......

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